What were the

record is still extant,* and the fraud visible. words erased cannot be known; but the nature of the erasure may be conjectured from the oath of fealty immediately following, which binds the King of Scots to no further obligations to the English monarchy than for the lands and tenements he holds of the King of England. Of what these lands and tenements consisted, or were held to consist, we have no full or exact information; but from documents published by Sir Francis Palgrave himself, we know that in the two northern counties alone they were of considerable value. He has published the rental and services due to Alexander from his estates in Cumberland and Northumberland, and has promised to give us, in his next volume, the rolls of the justices-itinerant employed by the Scottish Monarch in Tynedale.+

We shall now proceed to a constitutional question, of antiquarian curiosity at least, if not of present importance, to which the discoveries of Sir Francis Palgrave have given rise.

The first instrument of appeal professes to be delivered in the

*Rot. Claus. 6. Edw. I. m. 5. d.-There is a discrepancy in the dates between the memorandum on the clause rolls and the declaration published by Sir Francis Palgrave, which we cannot satisfactorily explain. The memorandum states, that in the Parliament at Westminster an Michaelmas day, Alexander, King of Scotland, appeared before King Edward, became his liegeman, and did him homage. The declaration informs us, that Alexander having proffered homage at Tewksbury on the Sunday before the festival of St. Luke the Evangelist, that is on the 16th of October, the homage was postponed to a later day in London, the King not having his council with him. The only conjecture we can form is, that the Parliament had been summoned to meet, and that it had actually met on Michaelmas day-that it had been subsequently adjourned till after the middle of October-and that the business transacted after it met again was dated, as used to be the case with Acts of Parliament, on the day on which it was first assembled. It appears from a letter to the Bishop of Bath and Wells (Fœdera, i. 554) in the preceding March, that the place originally fixed for performance of the homage was London, and the day the quindene of Michaelmas (13th October). It is stated in the same letter, that Alexander had signified, by a solemn embassy to Edward, that he was ready to do homage, absque conditione aliqua. It appears, however, from the erasure and falsification of the record, that the terms in which it was expressed had not been satisfactory to the English monarch.

No. 3, and Introd. viii.-The jurisdiction exercised by the King of Scots in Tynedale, was not founded, as Sir Francis Palgrave seems to insinuate, on the same grounds as the jurisdiction he exercised in Lothian, but on the special conditions of the agreement between Alexander II. and Henry III. in 1237 (Fœdera, i. 233.)

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names of persons styling themselves, the Seven Earls of Scotland,' and claiming a right, which they have enjoyed from time immemorial, of supplying, in conjunction with the community of Scotland, any vacancy that occurred in the Scottish throne, that throne being de jure and de facto vacant. Sir Francis Palgrave is disposed to admit the truth and justness of this claim. He considers the seven Earls to have been a constitutional body,' distinct and severed from the rest of the estates of the king'dom,'-not possessing an electoral right' in the sense of Buchanan and other republican writers, but forming a judicial body, which had authority, when the throne was vacant, to award it to the persons, who, by the usages and institutions of the monarchy, had the best right to it. On that point, we are at issue with him. We believe that no such constitutional body existed in Scotland; that in that kingdom, as in other Teutonic states, when the throne was vacant, it was filled up, either peaceably by the ordinary course of succession, with consent of the states; or irregularly by force and violence, with more or less semblances of a legal confirmation from the same authority.

We are far from denying the general position of Sir Francis Palgrave, that in the middle ages, as at present, elections were frequently made, and judicial determinations given by persons, variously chosen and appointed, acting in the name, and invested with the authority of larger and more numerous bodies of men. We admit also, to the fullest extent he can desire, that the succession to the Scottish monarchy was exceedingly vague and unde'termined;' and that on every demise, the throne might almost be considered as, de jure as well as de facto, vacant. But we see no reason to believe that, in the absence of all other fixed rules, our barbarous ancestors had the foresight to establish a select body of seven Earls, and confer upon them the right to sit in judgment on competitors for the throne, and award it to the person who had the best right to it. When the crown was contested, as from the differences betwen the Celtic and Teutonic laws of succession, was frequently the case in Scotland, the decision, if not effected entirely by force, was probably left, as in the neighbouring countries, to the states of the kingdom; and by them determined according to the predominant interests and partialities of the moment.

We object to the theory of the seven Earls, because,

I. There is no other mention of such a constitutional body in any Scotch or English document of the eleventh or twelfth century, though the succession to the Scottish monarchy during a great part of that period was exceedingly irregular, and the devia

When

tions from the direct course of descent very numerous. Donald succeeded Malcolm Canmore-when Duncan dispossessed Donald-when Donald resumed the sceptre on the slaughter of Duncan-and when Donald was finally deprived of his crown and liberty by Edgar-we hear of foreign and domestic violence effectuating these revolutions, but no mention is made of the constitutional confirmation of any of them by the seven Earls. In the reigns of David, Malcolm, William, and Alexander II., we are told of insurrections in various parts of Scotland by pretenders, on one ground or other, to the throne; but we hear nothing of this college of Earls, who are supposed to have had judicial authority conferred upon them, by the immemorial law and custom of the monarchy, to put an end to these unhappy disturbances. It is in vain to say that we have no Scottish historians of that period, while there are so many English chroniclers, who treat minutely of the affairs of Scotland, and from none of whom, nor indeed from any document in existence, except those mutilated fragments of Sir Francis Palgrave, is an atom of information to be derived concerning this supreme and paramount body, the superintendents and conservators of the Scottish monarchy. 2. According to the earlier laws of succession,' says Sir Francis Palgrave, 'throughout Europe, the heir, whether lineal or collateral, possessed only an inchoate right to the throne, and which required recognition or confirmation by some competent authority to perfect its validity.' To this doctrine we readily subscribe; and applying it to Scotland, we find in various occasions, on the demise of a King, the formal recognition of his successor, not by the seven Earls, but by the prelates and nobles, who, as in other Teutonic nations, were called upon to exercise that privilege. On the death of Malcolm IV., the prelates and proceres of the kingdom met at Scone, and appointed (assumpserunt) his brother William to be their King.* After William, his son Alexander II. was assumed or recognised as King by the Bishop of St Andrews, the Earls of Strathern, Athol, Angus, Menteith, Buchan, and many others of the three estates; † and on the demise of Alexander II. an assembly was held of Prelates, Earls, Barons and Knights, for the coronation of his son Alexander III., a boy not eight years old; and though a question arose, whether he ought to be crowned before he was knighted, it was not objected to the proceeding that there were seven Earls in the kingdom whose consent was previously necessary for his recognition.‡

Scotichronicon, viii. 12. + lb. ix. 1.

lb. x. 1.

3. If we are to believe Hoveden,* a contemporary author of the highest credit, an attempt was made by William of Scotland to alter the succession to the Scottish throne. Despairing of issue male, he proposed to settle the crown on his daughter Margaret, to the exclusion of David Earl of Huntingdon, his brother. If ever there was an occasion, on which it might have been expected that the seven Earls of Scotland would have come forward and taken the prominent part that belonged to their station and privileges, it was in a case like this, when the law of succession was about to be changed. But of them and of their supposed prerogative we hear not a word. We are told that several persons were ready to acquiesce in the King's wishes; but that Earl Patrick and many others opposed them,-saying it was not the custom of Scotland to admit a female to the throne, while there was a brother or a nephew of the reigning King that had a right to it. Was Earl Patrick, it may be asked, one of the privileged peers, who, by immemorial custom, had the adjudication of the Scottish crown when it became vacant? Most certainly not. Earl Patrick was Earl of Dunbar of recent establishment-a Saxon by descent and totally unconnected with ancient Albania and its institutions.

4. The transaction that bears the nearest resemblance to a legal adjudication of the Scottish sceptre, is the recognition of the Maid of Norway as presumptive heiress of the throne in the lifetime of her grandfather Alexander III. The record is still in existence, and contains the authority by which it was made. There is no mention in it of any select body, without whose concurrence, according to the theory we are now discussing, it could not have been valid. It is attested by all the Earls of Scotland, thirteen in number, and by twenty-five Barons; and the obligation it contains is placed, not under the safeguard of seven Earls, but of eleven Bishops.

5. On the sudden and unexpected death of Alexander III. the custody of Scotland, which had been unprovided for, was not assumed by this supposed electoral body, but was committed by the states of the kingdom to two Bishops, two Earls, and two Barons; and on the death of the two Earls, it continued, till the decease of Margaret, in the hands of the two Bishops and two Barons, without a single Earl having been added to their number. 6. The community of Scotland having been informed that Edward had procured a dispensation from the Pope for the marriage of his son Edward with their young Queen the Maid of

* Savile, f. 430. b.

Foedera, i. 638.

Norway, expressed their approbation of the alliance by a letter addressed to him, not in the name of the seven dominant Earls, but in the names of the four Guardians of Scotland, and of ten Bishops, twelve Earls (the Earl of Fife being a minor), twentythree Abbots, eleven Priors, and forty-eight Baróns. *

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7. We are told in one of the mutilated scraps saved by Sir Francis Palgrave from destruction, that when William of Scotland became the liegeman of the English crown for his kingdom of Scotland, the seven Earls became bound by oath to the King and to the crown of England, that if their King'should ever in any wise refuse obedience to the King of England, they should 'redress the same.' Fortunately we have still preserved the original act of submission made by William the Lion to Henry II. of England. We find in it no mention of the seven Earls. We find in it, indeed, the obligation alluded to in the fragment; but it was an obligation contracted, not by any particular body in Scotland, but by all the Bishops, Earls, and Barons of the kingdom. Yet, such is the blindness of system, in minds even the most acute and intelligent, that this very false allegation is quoted by Sir Francis Palgrave S as one of the proofs of his theory, that there were seven Earls in Scotland, forming a distinct body, and severed from the rest of the estates of the kingdom.

8. That Bruce himself affixed a different meaning from Sir Francis Palgrave to the appeal, and to the other instruments where the seven Earls are mentioned, is apparent from the statement he has given of his recognition as presumptive heir of the crown in the lifetime of Alexander II. Supposing the seven Earls to have been a constitutional body, invested with the privileges attributed to them by Sir Francis Palgrave, a stronger case cannot be imagined for their interposition than the adjudication of a doubtful right to the crown. But who were the persons assembled by Alexander II. to determine that question? Not the seven Earls alone, but the nobiles et magnates regni Scotia, with the Bishops, and as many clerks and laymen as he could bring together. ** By whose assent was Bruce on that occasion declared presumptive heir of the crown? Not by judgment of the seven Earls, but par commun assent des Evesques, Contez et de son Barnage.††

From these petitions of Bruce, it seems to us clear that he did not, like Sir Francis Palgrave, understand, by the seven Earls of Scotland, a separate body, distinct from the rest of the com

*Fœdera, i. 730.

S Introd. xxxv.

No. V. and Introd. xix. **No. IV. 4.

VOL. LXVI. NO. CXXXIII.

Fœdera, i. 31. †† No. VII. 7.

D